January 4, 2016 — An essay by Pepperdine Law Professor Victoria Schwartz entitled “Overcoming the Public-Private Divide in Privacy Analogies” has been published in the Hastings Law Journal.

When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography may constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This dichotomy illustrates a public-private divide in which privacy violations by the government are treated differently from privacy violations by the private sector. Despite this divide, some courts have analogized from the Fourth Amendment to the trade secret context, while the Supreme Court has rejected such an analogy in the opposite direction.

A similar but reverse phenomenon occurs in the workplace privacy context. Traditionally, whether an employee whose privacy has been invaded by an employer is likely to prevail in court depends in part on whether the employer is in the public or private sector. The longstanding wisdom is that public-sector employees receive stronger workplace privacy protections than similarly situated private-sector employees as a result of Fourth Amendment protections. Nonetheless, unlike the trade secret context, Supreme Court precedent suggests that private-sector analogies are appropriate in evaluating public workplace privacy cases.

Despite this apparent inconsistency, neither courts nor scholars have offered any systematic criteria for evaluating when privacy analogies across the public-private divide are appropriate. Rather, courts import or reject privacy analogies between the public and private sectors without any meaningful consideration of when such analogies make sense. This Article offers a coherent and consistent normative framework to analyze when privacy analogies are appropriate across the public-private divide. In deciding whether such privacy analogies make sense, courts ought to apply a multifactored test in which they consider the presence or absence of factors regarding the privacy-invading actor that could justify the traditional public-private distinction. These factors include power of coercion, ability to harm identity formulation or protection of democracy, access to superior technology, and presence of bureaucratic features.